United States District Court, E.D. North Carolina, Western Division
ROSE LORENZO, on behalf of herself and all others similarly situated, Plaintiff,
PRIME COMMUNICATIONS, L.P., a Texas General Partnership, Defendant.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant's motion to
decertify or amend the Rule 23 class previously certified in
this action, the motion having been referred to the
undersigned by Senior United States District Judge Malcolm J.
Howard for memorandum and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B). Plaintiff, representing the Rule
23 class members, has responded in opposition to
Defendant's motion, and Defendant has replied.
Defendant's motion is, therefore, ripe for ruling.
an action under the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (FLSA) and the North
Carolina Wage and Hour Act (NCWHA), N.C. Gen. Stat.
§§ 95-25.1 et seq. against Defendant Prime
Communications, L.P. (Prime). Prime operates approximately
300 retail locations in twelve states from which it sells
wireless and cellular communications products, plans, and
accessories. Plaintiff Rose Lorenzo, a former employee of
Prime, initiated this action on February 17, 2012. Alleging
that Prime misclassified its Store Managers as exempt under
the FLSA, Plaintiff seeks to recover unpaid overtime wages,
liquidated damages, and attorney's fees and costs under
the FLSA. Plaintiff also asserts claims under the NCWHA,
alleging that Prime (i) failed to pay commissions and bonuses
owed Lorenzo and other employees, (ii) made improper
deductions to employee wages, and (iii) failed to pay
employees all wages when due in violation of North
Carolina's payday statute, N.C. Gen. Stat. §
court previously granted Plaintiff's motions to
conditionally certify her FLSA claim as a collective action
pursuant to 29 U.S.C. § 216(b) and to certify her NCWHA
claims as a class action pursuant to Rule 23 of the Federal
Rules of Civil Procedure. (See Order & Mem.
& Recommendation entered Jan. 15, 2014 [DE #74]
(conditionally certifying FLSA collective and recommending
certification of Rule 23 class); Order entered March 24, 2014
[DE #94] (denying appeal of FLSA collective certification and
adopting recommendation and certifying Rule 23 class of NCWHA
to class and collective certification, Prime moved to compel
arbitration of Lorenzo's claims based upon an arbitration
provision contained in its employment handbook. Finding
insufficient evidence of an agreement to arbitrate, the court
denied Prime's motion. Prime moved for reconsideration on
January 30, 2014, based upon newly discovered evidence of
signed “acknowledgements” by Lorenzo and certain
opt-in plaintiffs. Prime contended that these
acknowledgements constituted agreements to be bound by the
arbitration provision contained in Prime's employment
handbook. Because the acknowledgement form expressly stated
that the employee handbook is not a contract and
“creates no bindery [sic] promises or contractual
obligations, ” the court determined that Prime had
failed to show that Lorenzo or the other opt-in plaintiffs
had agreed to arbitration. Accordingly, the court denied
Prime's motion for reconsideration. (Mem. &
Recommendation entered March 31, 2014 [DE #97] adopted
by Order entered July 9, 2014 [DE #151].)
appealed this court's certification of a Rule 23 class,
Lorenzo v. Prime Commc'ns, L.P., No. 14-1622
(4th Cir. filed June 24, 2014), as well as this court's
ruling denying Prime's motion to compel arbitration,
Lorenzo v. Prime Commc'ns, L.P., No. 14-1727
(4th Cir. filed July 21, 2014). The Fourth Circuit
consolidated the appeals and, on November 24, 2015, issued a
published decision affirming this court's denial of
Prime's motion to compel arbitration and dismissing as
untimely Prime's appeal of this court's class
certification ruling. Lorenzo v. Prime Commc'ns,
L.P., 806 F.3d 777 (4th Cir. 2015).
issue in the motion presently before the court is the
court's Rule 23 certification of the NCWHA claims raised.
Following discovery, Prime moved to decertify or,
alternatively, to amend the Rule 23 class, which was
previously defined as follows:
All natural persons employed by Prime Communications, L.P.,
in retail stores and kiosks in the State of North Carolina
from February 18, 2010 to present who were paid commissions
or bonuses based on sales.
entered March 24, 2014 [DE #94] at 5.) Plaintiff opposes
decertification but agrees the class definition should be
Rule 23 Certification Standard
certified as a class action under Rule 23, an action must
meet four threshold requirements: (1) the class must be so
numerous that joinder of all members is impractical
(numerosity requirement); (2) there must be questions of law
or fact common to the class (commonality requirement); (3)
the representative parties' claims must be typical of the
claims of the class (typicality requirement); and (4) the
representative parties must be able to fairly and adequately
protect the interests of the class
(adequacy-of-representation requirement). Fed.R.Civ.P. 23(a).
action must also satisfy one of the requirements set forth in
Rule 23(b). See Fed. R. Civ. P. 23(b)(1), (2), (3).
This court previously certified the plaintiff class on the
ground that “questions of law or fact common to class
members predominate over any questions affecting only
individual members and . . . a class action is superior to